Questions Presented
You asked whether, in general, the agency may honor Income Withholding for Support
Orders/Notices (IWOs) issued by AmeriKids Child Support Specialists, Inc., a non-governmental,
private child support collection agency in Sioux Falls, South Dakota. If so, you asked
whether the agency may withhold the amounts specified in the two IWOs you submitted
for our review. You also asked whether the respective divorce decree and other court
orders that AmeriKids served with each IWO, standing alone, are for purposes of benefit
withholding, and whether a valid withholding order must specifically require payments
from the obligor’s Social Security benefits.
Short Answer
The agency may not withhold benefits pursuant to IWOs issued by AmeriKids. Nonetheless,
the agency must determine whether an underlying court order served with an AmeriKids
IWO, standing alone, is valid for withholding purposes. Here, the agency may not withhold
benefits pursuant to the underlying divorce decrees or other court orders at issue
because they do not constitute legal process. While legal process need not expressly
name the agency as garnishee or specifically require payment from the obligor’s Social
Security benefits, legal process must be directed to and for the purpose of compelling
a governmental entity that holds moneys, otherwise payable to an individual, to make
payments from such moneys in order to satisfy the individual’s legal obligation to
provide support. We conclude none of the underlying court orders satisfy this requirement.
Background
AmeriKids issued and served on the Sioux Falls, South Dakota Field Office an IWO for
Ronald P~ and an IWO for Ronald H~. Both Ronald P~ and Ronald H~ are Title II beneficiaries
who reside in Iowa.
The IWO that AmeriKids issued for Ronald P~, dated September 29, 2010, directs the
agency to withhold $750.00 per month from his Social Security benefits. AmeriKids
served three underlying court orders with this IWO. A Judgment and Decree of Divorce
issued by a South Dakota circuit court in February 1978 ordered Ronald P~ to pay child
support of $150 per month per child, plus medical/dental care and insurance, and alimony
of $100 per month. In March 1982, the same circuit court entered judgment against
Ronald P~ for alimony and child support arrearages totaling approximately $11,000.
In December 2001, an Iowa district court entered judgment against Ronald P~ for approximately
$43,000 for past due child support and medical expenses, past due alimony, and accrued
interest. The court also found Ronald P~ in willful contempt of court for nonpayment
of past due child support, sentenced him to 30 days in the county jail, and ordered
him to purge his contempt by paying $150 per month to the clerk of the South Dakota
circuit court noted above, beginning December 15, 2001.
In April 2011, AmeriKids issued an IWO for Ronald H~ that directs the agency to withhold
$300 per month from his benefits. AmeriKids served a Dissolution Decree issued by
an Iowa district court in December 1988 with this IWO. [1] The Dissolution Decree has an income withholding provision that directs Ronald H~’s
“employer” to deduct $75 per week from his income to satisfy child support arrearages,
and upon satisfaction of this amount, to deduct $65 per week from his income to satisfy
his current support obligation. The decree states that “the order for mandatory income
withholding shall remain in full force and effect for so long as Respondent is obligated
to pay child support,” and that it is “binding on current and future employers.”
Discussion
IWOs Issued by AmeriKids Are Not Legal Process, and Thus Do Not Permit Garnishment
As you know, Social Security Title II benefits may be garnished to enforce an individual's
legal obligation to provide child support. See 42 U.S.C. §§ 659(a), (h)(1)(A)(ii)(I); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b);
POMS GN 02410.200(A). The agency must comply with legal process, defined as “any writ, order, summons,
notice to withhold income . . . or other similar process in the nature of garnishment”;
directed to a governmental entity to compel it to make a payment, from moneys otherwise
payable to an individual, to another party in order to satisfy the individual’s legal
obligation to provide child support or alimony; and issued by (1) a court of competent
jurisdiction (domestic or foreign), (2) an authorized official pursuant to a court
order or pursuant to state or local law, or (3) a state agency that is authorized
to issue income withholding notices pursuant to state or local law or pursuant to
section 466(b) of the Social Security Act. See 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f); POMS GN 02410.200(B).
The agency may not honor IWOs issued by AmeriKids. Since they are not issued by a
court, an authorized official pursuant to court order or state or local law, or an
authorized state agency, IWOs issued by AmeriKids do not constitute legal process.
[2] See POMS GN 02410.210(A)(4) (third-party garnishment orders, standing alone, are not sufficient to authorize
garnishment). Section 207(a) of the Act prohibits the withholding of benefits based
on orders that are not legal process. “The right of any person to any future payment
under [Title II] shall not be transferable or assignable, at law or in equity, and
none of the moneys paid or payable or rights existing under this title shall be subject
to execution, levy, attachment, garnishment, or other legal process,” unless some
other provision of law expressly provides for such collection. 42 U.S.C. § 407(a).
We caution that while IWOs issued by AmeriKids are not legal process, the agency must
nonetheless determine, for purposes of benefit withholding, the validity of a court
order purportedly underlying and served with an AmeriKids issued IWO.[3] See POMS GN 02410.210(A)(4) (with third-party garnishment orders, agency considers whether underlying court
orders, if any, authorize garnishment). Accordingly, we now consider whether the underlying
court orders permit garnishment.
The Orders Underlying the IWOs Issued by AmeriKids Are Not Legal Process, and Thus
Do Not Permit Garnishment
As noted above, the agency must comply with legal process directed to a governmental
entity to compel it to make a payment, from moneys otherwise payable to an individual,
to another party in order to satisfy the individual’s legal obligation to provide
child support or alimony. See 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f); POMS GN 02410.200(B). The 1978 South Dakota Judgment and Decree of Divorce that AmeriKids served with
the IWO that it issued for Ronald P~ is not in the nature of garnishment, i.e., it
contains no specific provision for income withholding by a third-party payor. Therefore,
the decree does not constitute legal process. For the same reason, the South Dakota
and Iowa judgment orders to enforce Ronald P~’s support obligation do not constitute
legal process.
Although the 1988 Iowa Dissolution Decree that AmeriKids served with the IWO for Ronald
H~ has an income withholding provision, it too fails to constitute legal process.
While legal process need not expressly name SSA as a garnishee, the decree is directed
to Ronald H~ “employer,” and not to a governmental entity to compel it to make a payment,
from moneys otherwise payable to an individual, to another party in order to satisfy
the individual’s legal obligation to provide child support or alimony.[4] See 5 C.F.R. § 581.202(a).
Moreover, even assuming, arguendo, the 1988 Dissolution Decree constituted legal process, the decree must be facially
valid, i.e., it must conform, on its face, to the laws of the issuing jurisdiction,
and service of the decree on the agency must be proper. See 5 C.F.R. §§ 581.202, 581.305(a)(1); POMS GN 02410.205, 02410.210(A)(3)(b). Here, the decree appears to be valid on its face.[5] However, we question AmeriKids’ service of the decree on the agency.
Service of legal process that is regular on its face must be in accordance with the
law of the issuing state. See 42 U.S.C. § 659(c)(2); 5 C.F.R. § 581.202; POMS GN 02410.205, 02410.210(A). Under Iowa law, only the district court may serve an order of income
withholding, standing alone, on the obligor’s payor of income. See Iowa Code Ann. § 252D.17 (“the district court shall provide notice by sending a copy
of the order for income withholding or a notice of the order . . . to the obligor
and the obligor’s payor of income by regular mail, with proof of service completed
according to rule of civil procedure 1.442”). Here, AmeriKids served the decree on
the Sioux Falls, South Dakota Field Office. Therefore, service on the agency was not
proper under Iowa law, and thus, even if the decree constituted legal process, the
agency may not honor it.
Conclusion
IWOs issued by AmeriKids do not constitute legal process, so the agency may not honor
them. However, the agency must determine whether it may withhold benefits pursuant
to an underlying court order served with an IWO issued by AmerKids. Here, the agency
may not withhold benefits pursuant to any of the underlying court orders, standing
alone, because none constitute legal process. Legal process need not expressly name
the agency as garnishee or specifically require payment from the obligor’s Social
Security benefits. However, legal process must be directed to and for the purpose
of compelling a governmental entity that holds moneys, otherwise payable to an individual,
to make payments from such moneys in order to satisfy the individual’s legal obligation
to provide support. Here, we conclude that none of the underlying court orders satisfy
this requirement.
John Jay Lee
Regional Chief Counsel
By: ___________________________
Yvette G. Keesee
Assistant Regional Counsel